In Depth

Since the Supreme Court of the United States weighed in on “ministerial exception” in January 2012, cases have
been percolating across the country spurred by religious institutions claiming the exception as protection against employee
discrimination lawsuits.

However, the Supreme Court limited its ruling to only the facts presented in Hosanna-Tabor Evangelical Lutheran Church
and School v. Equal Employment Opportunity Commission, et al., 132 S.Ct. 694, and left for another day how the exception
would apply to workers who do not have specific religious duties.

A lawsuit from Fort Wayne is one of the first cases regarding the ministerial exception that arose after the Hosanna-Tabor
decision, and attorneys believe it has the potential to force the Supreme Court to set parameters for determining who
in a religious-affiliated institution qualifies as a minister.

DeLaney

The Fort Wayne case, Emily Herx v. Diocese of Fort Wayne-South Bend and St. Vincent De Paul School, 1:12-CV-122,
was filed in the U.S. District Court for the Northern District of Indiana, Fort Wayne Division in April 2012 – three
months after SCOTUS offered its opinion.

Emily Herx’s position appears to fall in that gray area not addressed by the Supreme Court. She was a language arts
and literature teacher in a Catholic school but she did not teach any religion courses or lead any church activities. Yet,
in response to her complaint that the diocese discriminated against her by terminating her employment after she underwent
infertility treatments, the diocese claimed it was exempt from the civil proceeding by the Establishment and Free Exercise
clauses of the U.S. Constitution.

“Our view is that the ministerial exception should be limited to people who have religious duties and responsibilities
as part of their job and to people who are ordained as ministers,” said Kathleen DeLaney, the Indianapolis attorney
representing Herx.

Circuit courts had been deciding ministerial exception cases before the Supreme Court took up the matter. Typically, the
decisions from the Circuit went a step farther by formulating tests to determine who fits the minister definition.

The 5th Circuit Court of Appeals established three factors an employee must meet to be considered a minister and the 4th
Circuit developed a primary duty test. In Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (2003), the
7th Circuit Court of Appeals concluded that a church’s press secretary served a “ministerial function” which
barred her employment discrimination suit.

Jennifer Drobac, professor of law at Indiana University Robert H. McKinney School of Law, speculated the Herx suit
will go to trial. She contended the Catholic Church wants to use this dispute as a test case to expand the definition of ministerial
exception.

Pointing to the conservative nature of the Fort Wayne community, Drobac believes the church may be counting on a favorable
verdict. This case, she said, is less about the intricacies of who qualifies as a minister and more about power.

Religious entities want to be completely left alone by the government and, regardless of what the final outcome is, Herx
will have a ripple effect by answering how much independence these organizations can have, Drobac said.

Expanding a family

In her complaint, Herx contends the diocese treated her less favorably than other employees because she sought medical treatment
for infertility so she and her husband could have more children. The diocese’s action to terminate her employment, she
said, violated Title VII of the Civil Rights Act of 1964 and Title I of the Americans with Disabilities Act.

Herx’s problems with the diocese began when she requested time off for another round of in-vitro fertilization treatments.
Msgr. John Kuzmich, then-pastor of St. Vincent de Paul Parish, told Herx she was setting an inappropriate moral example that
could have adverse spiritual consequences for her students.

She appealed the decision to not renew her teaching contract, but Bishop Kevin Rhoades refused to reverse course. Rhoades
characterized the process of IVF as an “intrinsic evil” because it involves the “deliberate destruction
or freezing of human embryos.”

The Diocese of Fort Wayne-South Bend and its attorneys declined to comment to the Indiana Lawyer. However, in a
statement issued shortly after Herx filed her complaint, the church asserted its teacher contracts clearly state the policies
requiring classroom instructors to have respect for and abide by the tenets of the Catholic faith.

While the definition of a minister is foggy in the Herx case, it was very clear in the Hosanna-Tabor dispute.
Attorney Michael Ewing’s description of Hosanna-Tabor as a “slam dunk case” is confirmed by the
Supreme Court 9-0 decision. Cheryl Perich, the plaintiff in the Hosanna-Tabor case, had ministerial duties that included
leading her students in prayer and participating in chapel services. In addition, she had passed the requirements to be classified
as a “called” teacher and was given the title of “Minister of Religion, Commissioned.”

Left undecided by SCOTUS was where the ministerial line lies for employees who worked for religious-affiliated entities but
were not tasked with religious duties. Ewing, senior associate at Frost Brown Todd LLC in Nashville, explained a religious-affiliated
employer might feel its employees should embody and personify its core religious values. Consequently, those employees should
be held accountable when their actions are not consistent with those values.

DeLaney, managing partner at DeLaney and DeLaney LLC, said if the argument eventually prevails that every employee of a religious
institution is a minister and therefore unprotected by Title VII and the ADA, it would have enormous repercussions for the
millions of people who work for religious-affiliated organizations.

That point about the potentially large impact was echoed by the American Civil Liberties Union and the American Society for
Reproductive Medicine. Both organizations filed amicus curiae briefs in opposition to the diocese’s motion for judgment
on the pleadings dismissing Herx’s complaint.

The ASRM argued allowing the diocese to terminate employees who sought IVF treatment would have “chilling effect”
on a huge patient base. Likewise, the ACLU asserted the Catholic Church’s position would bring back a time when religious-affiliated
institutions discriminated against individuals with HIV, African-American doctors and women who became pregnant.

Cincinnati verdict

Writing for the Supreme Court, Chief Justice John Roberts confirmed the Circuit courts’ view that a “ministerial
exception” does exist. SCOTUS held that by requiring a church to retain an unwanted minister, the state is interfering
with the internal governance of the religious organization and, therefore, infringing on the church’s right to shape
its own faith and mission through it appointments as guaranteed by the Free Exercise Clause.

The ministerial exception, said Rozlyn Fulgoni-Britton, an employment attorney at Faegre Baker Daniels LLP in Indianapolis,
“keeps the courts and juries from hashing out ecclesiastical doctrine and weighing faith.” On the other hand,
“employees have less protection from employment discrimination law in certain cases.”

A recent verdict in a ministerial exception dispute in Cincinnati gave a boost to Herx. In Dias v. Archdiocese of Cincinnati,
2012 WL 1068165 (S.D. Ohio, March 29, 2012), Christa Dias was fired from her teaching position after she became pregnant through
artificial insemination.

The archdiocese claimed Dias was fired because she failed to act in a manner consistent with the philosophy and teachings
of the Roman Catholic Church. However, the jury agreed with Dias that she was discriminated against and awarded the former
teacher $171,000.

Members of a jury typically are persuaded by the fairness aspect, rather than the technical legal issues, Fulgoni-Britton
and Ewing said. When jurors judge the action to be unfair, a high verdict likely will follow.

Given the number of couples who have undergone infertility treatments and understand the emotional rollercoaster, DeLaney
believes the Dias outcome is a positive indication of how a jury might react to the evidence in the Herx
case.

“I think a lot of people have identified with Emily,” DeLaney said, “and her struggles to expand her family
with her husband.”•

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